Philadelphia Criminal Defense Blog

Zak Goldstein 12/22/20 Zak Goldstein 12/22/20

Do the police need a search warrant to search a car in PA?

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Alexander, holding that police generally need a search warrant in order to search a motor vehicle in Pennsylvania. In this case, the Court overruled the case of Commonwealth v. Gary, in which a plurality of the Court had recently held that police did not need a search warrant to search a car in Pennsylvania. This is an important decision and significant victory for privacy rights as it prevents the police from searching a car without a warrant. It makes it more difficult for the police to search a car based merely on a hunch as they must now go through the process of drafting an affidavit of probable cause and presenting it to a judge prior to searching a car. In some cases, this can be done telephonically, but Philadelphia typically does not have those procedures in place.

Do the police need a warrant to search a car for a federal case?

It is important to note that federal law and Pennsylvania law are now very different in terms of whether the police need a search warrant prior to searching an automobile. The United States Supreme Court has repeatedly held that the police and federal agents do not need a warrant prior to searching a car pursuant to the federal automobile exception. Instead, officers only need probable cause. This means that if law enforcement officers at the state, federal, or local level may search your car without a search warrant and then use that evidence against you in federal court as long as they had probable cause cause for the search. In federal court, it is still possible to challenge an illegal search, but the police do not have to get a warrant first. However, the vast majority of cases are prosecuted in state court. Therefore, this opinion will affect most people.

Can the police ever search a car without a warrant in PA?

Under this new case, however, evidence from a warrantless search may not be used against you in Pennsylvania state court unless the police either obtain a search warrant based on probable cause or have exigent circumstances which justify their inability to obtain a search warrant in a timely manner. Exigent circumstances are something like an emergency - it means that there was something about the situation that made the search urgent either due to officer safety concerns or concerns that evidence could be lost. If the police have exigent circumstances, even under Alexander, they do not need a search warrant prior to searching a car so long as they have also probable cause. But in general, police in Pennsylvania should now obtain a search warrant prior to searching a car in most cases. If they do not get a search warrant and find some sort of contraband or incriminating evidence, that evidence could be suppressed by filing a motion to suppress prior to trial. Much of the litigation will likely now focus not only on whether police had probable cause but also whether it was really an emergency that they search the vehicle prior to presenting a warrant to a judge.

Facing criminal charges? We can help.

It is also important to note that this case is likely retroactive - meaning that if you have charges pending against you from a search which took place prior to the case being decided, you may still be able to challenge the search based on this new case if the police did not get a warrant. Therefore, if you are facing criminal charges or are under investigation in Pennsylvania or New Jersey, you should speak with a Philadelphia criminal defense lawyer today. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 11/28/20 Zak Goldstein 11/28/20

How do I get my stuff back from the police in PA?

Petitions for Return of Property in Pennsylvania Criminal Cases

Philadelphia Criminal Defense Lawyer Zak Goldstein

A common question that we receive from clients who have been charged with crimes or had their belongings seized by the police is how to get those items back. In some cases, it is possible to get your things back from the government by filing a Petition for Return of Property pursuant to Pennsylvania Rule of Criminal Procedure 588. Whether or not and when you can get your things back depends on the nature of the item and the status of the criminal case, but in most cases where the item itself is not contraband or stolen, you may be able to seek its return either while the case is pending or within thirty days from the end of the case.

Pennsylvania Rule of Criminal Procedure 588

Pa.R.Crim.P. 588 governs the return of property in criminal court. The rule provides:

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

This means that a petition may be filed in the Court of Common Pleas where the case is or was being heard seeking the return of property. For example, if the police took your things while investigating the case and refuse to give them back despite them having no evidentiary value, you may be able to file a petition seeking an order from the court directing the police to return the items. If the items were seized during an illegal search or seizure, you may also be able to combine the motion for the return of your items with a motion to suppress.

How long do I have to file a petition for return of property?

The Pennsylvania Superior Court recently decided the case of Commonwealth v. Caviness, holding that a petition for return of property associated with a criminal case must be filed within thirty days of the conclusion of the case.

In Caviness, the defendant’s wife filed a motion for the return of some family photos which were on electronic devices that had been seized from the defendant. The petition was filed more than thirty days after the case had concluded, and the defendant had been convicted in the case. The Commonwealth opposed the petition, arguing that the family photos were on electronic devices which contained other contraband and that it did not have the resources to sort through the device to ensure that no contraband would be returned with the family photos. The trial court accepted the Commonwealth’s position and denied the motion.

The defendant’s wife appealed, arguing that the Commonwealth should be required to return all of the photos. The Superior Court rejected the wife’s argument on appeal, finding that the trial court lacked jurisdiction to entertain the motion under Rule 588 because more than thirty days had passed from the defendant’s sentencing. Therefore, the trial court no longer had jurisdiction over the case.

Thus, in order to file a motion with the criminal court, the motion must be filed either while the case is pending or within thirty days from the conclusion of the case. It is important to note that it may also be possible to seek the return of property in Commonwealth Court and that you may have longer to do so, but that process can be more complicated than filing the petition for return of property in criminal court.

The Commonwealth will also sometimes agree to allow the late filing of a petition (a nunc pro tunc petition) if there is a good reason for the delay.

What types of property can I get back?

Generally, you can seek the return of anything that is not contraband. Obviously, the law does not require the police to return drugs, illegal guns, or other items that were used to commit a crime even if the case is over or the search was conducted illegally. However, if the items no longer have evidentiary value or it can be shown that the police seized the items in an unconstitutional manner, then it may be possible to seek the return of property like cars, cash, and other valuable items.

The timing of such a petition depends on the nature of the case and status of a case. For example, it may not be possible to get property back right away because the police may need to process the items as evidence. But once that process has finished, it may be possible to seek the return of the property even if the charges are still pending. This frequently happens in cases involving cars - the police may want to dust the car for fingerprints or swab it for DNA, and that process may take a few days or even weeks. Once it is over, however, the police should return the car as they are unlikely to introduce the car itself at trial. If they refuse, it may be possible to obtain a court order directing them to do so.

How do I file the Petition?

In Philadelphia, a Petition for Return of Property must be filed in person on the second floor of the Criminal Justice center. It generally must describe the property, the circumstances under which it was seized, and it must also establish proof of ownership. In general, it is important to discuss the situation with your criminal defense lawyer prior to filing anything in court as there may be reasons why it may make sense to wait to file the petition until the case is over. Either way, the police cannot simply keep your things just because they want to, and a Philadelphia criminal defense lawyer may be able to help you get your property back.

Is a return of property different from a forfeiture?

Petitions for return of property are often closely related to forfeiture proceedings. In many cases, the Commonwealth initiates the litigation regarding whether property should be returned by filing a forfeiture petition. For example, if the police seize a large amount of cash while making an arrest for possession with the intent to deliver, the police will typically keep the cash. The prosecution will then file a forfeiture petition asking a judge to order that the Commonwealth should keep the money. In this situation, it often makes sense to move to stay the forfeiture proceedings until the criminal case is resolved. If the defendant wins the case or wins a motion to suppress, the government may be required to return the money. The main difference in this situation is that the Commonwealth files the petition instead of the defendant, and it usually makes sense to wait to resolve the forfeiture issue until the criminal case is over.

Criminal Defense Lawyers in Philadelphia

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 11/10/20 Zak Goldstein 11/10/20

Challenging a State Court Conviction in Federal Court in Pennsylvania

28 U.S. Code § 2254 provides one last chance for appealing a wrongful state court conviction by filing a petition in federal court. This type of petition would typically be filed once all other appeals have been exhausted. This means we may be able to help you even if the appeals courts have upheld a conviction on direct appeal and a post-conviction relief act petition filed in state court has been denied.

A criminal defendant who received the ineffective assistance of counsel in their state court trial, on direct appeal, or in the first round of state court PCRA proceedings may be eligible for relief in federal court. It is important to note that federal habeas petitions are extremely complicated and that the deadlines for filing them are very strict, so it is important to consult with an experienced defense attorney as soon as possible if you are considering filing one for your case. This article does not discuss all of the potential issues that a defendant may face in filing a successful federal habeas petition.

Learn more

Zak Goldstein 10/22/20 Zak Goldstein 10/22/20

PA Superior Court: NJ Aggravated Assault Conviction Not a Prior "Strike"

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s conviction for third-degree aggravated assault in New Jersey does not qualify as a prior “strike” offense under 42 Pa. C.S.A. § 9714. This decision is significant for people who have convictions in other states because it requires a trial judge to analyze said conviction to determine whether it qualifies as a strike offense in Pennsylvania. As this decision shows, “strike” offenses are very serious and can result in lengthy mandatory minimum sentences at sentencing for subsequent offenses.

Commonwealth v. Johnson

In 2018, the complainant was working as a cashier at a convenience store in Chester County, Pennsylvania. At about 7:45 p.m., a customer approached the counter with a bag of chips. The complainant asked for twenty-five cents to which the man then proceeded to drop the chips and pull a gun on him. The complainant told him not to “play” unless he wanted to go to jail and advised him that there were cameras in the store. The man then left the store with the chips and the complainant followed him demanding payment. The man then re-entered the store, put the chips back on the counter, and told the complainant that he made a mistake and did not want the chips. The man then left the store.

The complainant did not immediately report the robbery. The following day when his manager came into the store, the complainant told him what happened. The two men then viewed the security camera video and saved the video footage of the robbery. Later that day, the man who committed the robbery entered the store. The cashier recognized this man as the robber from the night before. Upon seeing the complainant, the man abruptly left the store. The complainant reviewed the footage and confirmed it was the person who robbed him the night before and called the police.

About five minutes later, an officer with the Chester Police Department arrived at the convenience store. The officer reviewed the footage and sent out a “flash” including a description of the individual and what he was wearing. The officer then left the store and began to search for the suspect himself. About fifteen minutes after he left the store, he came across the defendant. The officer detained the defendant and the complainant made an identification of him. The defendant was subsequently arrested and charged with robbery and possessing an instrument of crime (“PIC”).

The defendant proceeded by way of a jury trial where he was convicted of both charges. He was then sentenced to a term of ten to twenty years of imprisonment. The reason he received that sentence was because the trial court determined that this was a “second strike offense” based on his prior New Jersey conviction for aggravated assault graded as an indictable offense (felony) of the third-degree. Afterwards, the defendant filed a timely appeal raising multiple issues. For purposes of this blog, only his sentencing issue will be addressed.

What is Pennsylvania’s Strike Statute?

42 Pa. C.S.A. § 9714 is the statute that governs second and third strike offenses. It states:

(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa. C.S.A. § 9714(g) also lists the offenses that qualify as a “strike” offense. It should be noted that not every crime of violence qualifies as a strike offense. For example, only two of the nine subsections of Pennsylvania’s aggravated assault statute qualify as a “strike” offense. Thus, it can be inferred that these mandatory minimum sentences are only reserved for the most serious crimes.

The Superior Court’s Decision

The Pennsylvania Superior Court remanded the defendant’s case for a new sentencing hearing. In making its decision, the Court analyzed New Jersey’s aggravated assault statute. New Jersey defines third-degree aggravated assault as when a person “[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury. The New Jersey Code of Criminal Justice defines “significant bodily injury” as: “bodily injury which creates a temporary loss of function of any bodily member or organ or temporary loss of any of the five senses.” This is different from Pennsylvania’s aggravated assault statute which requires “serious bodily injury” which is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

This distinction proved to be important for the Pennsylvania Superior Court. It found that the defendant’s New Jersey conviction was not serious enough to warrant a classification as a prior “strike” offense. Therefore, the statutes were not equivalent, and a conviction under the statute did not constitute an equivalent offense. Therefore, the defendant did not qualify for an enhanced sentence under 42 Pa. C.S.A. § 9714. As such, the Superior Court vacated his sentence, and his case will be remanded for re-sentencing.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers.jpg — Goldstein Mehta LLC Criminal Defense Lawyers